By Michael L. Crowley
Nary a week goes by without your author being asked how long we have to keep our files in storage. I would like to be able to give you a definitive answer, but there isn’t one. The state bar’s Committee on Professional Responsibility and Conduct (COPRAC), however, is venturing into the area and you are likely not going to like it.
BLUF1: the draft being circulated basically requires members of the criminal defense bar to keep most files for the life of the client. Civil attorneys have different standards.
The proposed opinion (Interim No. 190004) states:
Because files relating to criminal matters may have future vitality even without conviction, and even after judgment, sentence and appeals, absent a contrary agreement or client consent, a lawyer should retain the files for the life of the client
At a minimum, a lawyer should not initiate the destruction of client files in closed criminal matters until the expiration of the sentence, all appeals, or any statute of limitations on actions against the lawyer, whichever is longest.
In closed civil matters, a lawyer’s file retention duties generally turn on the lawyer’s obligations as the bailee of the former client’s papers and property and the lawyer’s duty to avoid reasonably foreseeable prejudice to the former client.
These days, the saving grace is it can be kept in electronic format.
The contents of the closed files in criminal matters may be retained in electronic form if every item is digitally copied and preserved, unless retention of the physical item is required by law or the item, by its nature, requires preservation in physical form, i.e., physical evidence.
Currently, there is no specific Rule of Professional Conduct (RPC) governing the retention of files, although RPC rules 1.16 [Declining or Terminating Representation] and 3.8 [Special Duties of a Prosecutor] expressly remind defense attorneys of their file retention obligations and prosecutors of their obligations to preserve evidence.
Additionally, there is a statutory provision regarding file retention at Cal. Penal Code section 1054.9. It requires counsel to retain files for the term of a client’s imprisonment in cases where the defendant is convicted of a serious or violent felony and sentenced to 15 years or more. As criminal practitioners know, a serious or violent felony sentence could mean life in prison.
This code section was included in the 2018 legislation to ensure that the documents would be available for post-conviction relief. Case law states post-conviction counsel must make good faith efforts to obtain discovery materials from trial counsel. I am informed by the California Western School of Law Innocence Project that obtaining the discovery is a difficult problem in their cases. Technically, this statute doesn’t affect a lawyer’s ethical obligations.
Your San Diego County Bar Association has sent a letter to COPRAC pointing out where the opinion should provide more guidance to lawyers. Included in the comments was a commentary on the difficulties of a solo practitioner complying with the dictates of the proposed opinion. The county bar has a nascent project with the idea that perhaps the bar could provide scanning and storage services to sole practitioners.
Practice Tips: include a provision in your retainer agreement regarding a client’s files. Of course this is no help for an appointed attorney in a criminal case where it is likely there is no written agreement, but here is a sample:
Client’s Papers and Property: During our representation of you we will forward copies of significant documents prepared to keep you informed of the progress of your case. At the termination of our services, we will release upon request all your related documents and property. Should you request your file, records, or any property, you agree to pay for the copying of the file to be retained in our office as a record of the services furnished and other related expenses such as forwarding or shipping of these items to the person or places designated. Five years after termination of our services we reserve the right to destroy or purge your files and records.
Also, begin to scan everything so you can keep it in digitalized form. Although I am not recommending this method, the one upside of my house burning down in the 2003 Cedar Fires was nearly 20 years of files also burned up.2
Until the COPRAC opinion is finalized this guidance is the best we have.
1 A Naval acronym meaning Bottom Line Up Front, I recently learned in a federal trial.
2 Much to my chagrin, I had paid considerable funds to have files shredded the day before the fire.